Lysenko v Ku-ring-gai Council

[2005] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:

Lysenko v Ku-ring-gai Council [2005] NSWLEC 132

PARTIES:

APPLICANT
Alex Lysenko

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11552 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- Erection of a dual occupancy - character - streetscape - setbacks - solar access.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 53
Ku-ring-gai Planning Scheme Ordinance

DATES OF HEARING:

29/03/2005

EX TEMPORE JUDGMENT DATE:

03/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondillios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 March 2005

11552 of 2004 Alex Lysenko v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against a refusal of DA 1650/03 by Ku-ring-gai Council for the erection of a dual occupancy development at 43 and 45 Kedumba Crescent, North Turramurra. The parties agreed to the matter be heard as an On Site Hearing.

2 The proposal is to construct a detached dual occupancy development, comprising of 2 x part two storey brick dwellings with internal garaging and driveways from Kedumba Crescent.

3 The subject site is Lot 11 in DP 1068072. The site is located on the western and higher side of Kedumba Crescent. It is generally rectangular in shape with the total area of 1105 sq m. The front or eastern boundary is approximately 31 m while the rear or western boundary is 31.05 m. The northern and southern boundaries are 35.54 m and 36.575 m respectively. The site falls approximately 4 m from west to east. The site slopes most noticeably in grade near the front boundary due to a natural rock ledge approximately 1 m in height. It is currently vacant with trees along the southern side boundary. The subject site does not contain a front fence while side and rear fencing includes wire mesh and palling fencing.

4 The subject site is described in the Ku-ring-gai Visual Character Study as being located within an area characterised by single dwellings and single lots with the majority of construction being within the period of 1945 to 1968. A mix of architecture styles and periods are evident within the wider streetscape. There is a range of single and double storey dwellings on inconsistent lot sizes within the immediate locality with varying degrees of landscaping.

5 A single storey weatherboard dwelling is located adjacent to the north at 41 Kedumba Crescent, while a storey brick and tile dwelling is located to the south at 47 Kedumba Crescent. Sites within the immediate locality are characterised by generous front yard setbacks without front fencing or if present, low open style fencing.

6 The site is zoned Residential 2(c) and the Ku-ring-gai Planning Scheme Ordinance (KPSO) although the principle planning instrument or the assessment of the application is State Environmental Planning Policy 53 – Metropolitan Residential Development (SEPP 53). The KPSO provides aims and objectives for residential zones in Schedule 9 and are relevant where they are not inconsistent with the requirements in SEPP 53. The proposed development is permissible under SEPP53.

7 Clause 19 and 20 of SEPP 53 contain numerical requirements for allotment, size and FSR and carparking. There is no dispute that the proposed development satisfies these numerical requirements. Clause 32 of SEPP 53 contains qualitative requirements for the design of residential development and was the source of the council’s issue.

8 The Ku-ring-gai Dual Occupancy Development Control Code (the Code) also provides requirements for dual occupancy developments. Again, the requirements in SEPP 53 take precedent in the event of any inconsistencies.

9 The issues in the proceedings relate to two main areas:

1. streetscape, including front and side setbacks and visual bulk, and
2. overshadowing of the adjoining property at 47 Kedumba Crescent and internal overshadowing.

10 The parties agreed to the appointment of Mr Lindsay Fletcher as the Court appointed town planning expert.

11 On the issue of streetscape, Mr Fletcher states that the front setback is acceptable even though the setback is less than the 12 m required by the Code. The setback of No. 43 is 9.195 m and No. 45 is 10.507 m. Mr Fletcher notes that the proposed setbacks are consistent with the average setback of the two adjoining properties. He also notes that the encroachment of the 12 m standard occurs at the ground level only with the upper level satisfying the 12 m requirement.

12 On the issue of the side setbacks and separation, Mr Fletcher states that the Code, for sites with a width of 20 m or more requires a minimum setback of 3.726 at the ground level and 4.66 m at the first floor level. However, for sites less than 20 m, the required setback would be 2 m at the ground level and 2.5 m at the first floor level.

13 Mr Fletcher notes that the proposal does not include the subdivision of the dwellings and a literal reading of the Code would require the greater setbacks to apply, however in adopting a more practical assessment of the two detached dwellings (i.e., if they were subdivided and consequently the lesser setbacks applied), he concludes that the separation and setbacks are acceptable. Using the lesser setbacks, the proposal would be fully compliant at the first floor level and compliant, on average, at the ground level.

14 Overall, he sees the setbacks as adequate and despite minor numerical non-compliances they meet the assessment criteria by allowing sufficient space for landscaping to soften the appearance of the buildings.

15 With the benefit of the view of the site and surrounding area, I agree with the conclusions of Mr Fletcher. The area contains a variety of buildings forms. Newer buildings are generally two storeys and the proposal is clearly consistent with the newer character of the area. The front setbacks provide consistency with the adjoining property and the breach of the 12 m standard is not noticeable in this context. Similarly, the separation will not be overly noticeable and is similar to what would be expected on a residential area. I see little noticeable difference between the proposal and adjoining new residential development in the area, although I accept these are located on separate lots.

16 While Mr Fletcher initially raised concern over the appearance of the above ground detention system in the front setback, amended plans provided for the stormwater disposal to be addressed through the provision of rainwater tanks and smaller detention tanks under the driveways. I agree with Mr Fletcher that the proposed amendments satisfactory address the issue of the stormwater detention system on the streetscape.

17 In terms of SEPP 53, I find that adequate regard has been given to the design, particularly the requirements in cl 32(a) and 32(h) and also the relevant requirements in Schedule 9 of the KPSO, particularly cl 1(a), 1(b), 2(e) and 2 (f).

18 The other issue related to solar access and the impact on the adjoining property at No. 47 and also internal overshadowing.

19 With the benefit of further shadow diagrams, Mr Fletcher prepared a supplementary report that concluded that after considering the council’s requirements and AMCORD, the proposal will retain a satisfactory and acceptable level of solar access to the adjoining property and also internally.

20 With the explanation provided by Mr Fletcher on-site I accept his conclusions on the issue of solar access.

21 There being no reason why approval should not be granted the Orders of the Court are:

1. The appeal is upheld.

2. DA 1650/03 for the erection of a detached dual occupancy at 43 and 45 Kedumba Crescent, North Turramurra is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits 1, 2, 3 and A.

___________
G T Brown
Commissioner of the Court
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